Orissa High Court
Amiya Kumar Mishra vs Divisional Retail Sales Manager Iocl ... on 31 July, 2015
Equivalent citations: AIR 2015 (NOC) 1306 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.10952 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Amiya Kumar Mishra .... Petitioner
Versus
Divisional Retail Sales Manager,
Indian Oil Corporation Ltd. and others .... Opposite parties
For Petitioner -- Mr.Sarada Prasanna Sarangi
Advocate
For Opposite parties -- Mr.Sudarshan Nanda,
Advocate
(For Ops. 1 to 4)
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing :27.7.2015 : Date of Judgment: 31.7.2015
Dr.A.K.Rath, J.In this writ application under Article 226 of the Constitution of India, the petitioner challenges the order dated 25.6.2009 passed by the appellate authority, Indian Oil Corporation Ltd. Mumbai-opposite party no.4, vide Annexure-13. By the said order, the opposite party no.4 confirmed the order dated 15.1.2009 passed by the Divisional Retail Sales Manager, Sambalpur D.O., Indian Oil Corporation Ltd.,-opposite party no.1, vide Annexure-10, terminating the dealership of the petitioner. 2
2. The case of the petitioner is that pursuant to the dealership agreement dated 20.2.2007, vide Annexure-1, he was running a petrol and diesel outlet at Borigumma in the district of Koraput in the name and style of "Keshari Service Station". The retail outlet is situated at a distance of 17 K.Ms. from Jeypore. He had taken every effort to meet the standards prescribed by the Indian Oil Corporation Ltd., (hereinafter referred to as "the IOCL"). Though several inspections and checks were made by the IOCL, Police and Civil Supplies Department, but no irregularities were pointed out or detected. On 12.6.2008, the Divisional Manager (RS), Sambalpur Division visited the retail outlet in absence of the petitioner, inspected the petrol pump, found the irregularities, immediately stopped the sale of products and suspended the supply of the products to the retail outlet. On the very same day, a letter was issued to the petitioner directing to explain the reasons about the discrepancies detected during the visit of opposite party no.1, which is quoted hereunder:-
"During out visit to your RO on 12.06.2008 along with AM (RS)/Bgh; SRSM, OSO & Sr.Depot Mgr, Berhampur; the following discrepancies were observed:
(1) Stock variation of MS in MS Tank-1 was beyond permissible limit;
(2) The entries made in DSR do not match with the invoices of the products you have received.
This is a violation of MDG-2005 You are advised to
(i) Stock sale of all products with immediate effect.
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(ii) Explain the reasons for the above violation within seven days of receipt of this letter.
Kindly note that supply of products to your RO is being suspended temporarily till you reply. Sample of all products are being collected from your RO for testing at lab.
The Dip and Meter reading of DU as noted now is as below:
MS:Dip=48.0 cm. DU-1=750308.0 DU-2=105733 ( L& T Duo unit) XM=T-1=Dip-75.8 DU-1=2726549 ( Midco 981) XM-T-2=Dip=3.8 cm; DUI=18142 DU2=12010 (STP DUO Unit) This is without any prejudice to the rights of the Corporation."
3. On 16.6.2008, the petitioner submitted his reply stating therein that the retail outlet is situated near Jayantgiri, Borigumma, which is at a distance of 17 Kms. from Jeypore. For the last eight years, every effort was made to meet the standards prescribed by the IOCL. During all these years, the outlet was inspected by the Officers of the IOCL, Police personnel and Civil Supply Authorities. At no point of time any irregularities or any kind of discrepancies were ever pointed out or detected. It is further stated that on the date of inspection, he has received 4 KL MS, which had not been taken into account while the stock was verified. Though the stock was unloaded in the outlet, the staffs of the tanker carrying the challan had gone to the nearby hotel for taking lunch. The staffs of the retail outlet could not show the challan regarding receipts of 4 KL MS. This lapse is on the part of the employee. If receipts of 4 KL MS is taken into account, there would be no discrepancy. The staff, who was present at the time of inspection, was a 4 newly appointee and was not well versed with the maintenance of entries in the Daily Stock Register ('DSR' in short). The mistake occurred was unintentional and by inadvertence and the same will not occur in future. In continuance of the earlier reply, again on 12.7.2008 the petitioner submitted his reply stating that on the date of inspection, he has received 4 KL MS & 7.5. KL Xtra Mile. As per the procedure, the staff verified the deep and density of MS, kept the same in the container and unloaded the 4 KL MS product. At that time the inspection team arrived at the retail outlet and the staffs were busy with them to produce the papers. They could not check the TT and unload the Xtra Mile 7.5. KL. i.e., other two chambers. Since it was a lunch time, the driver had gone to a nearby hotel for taking lunch for which Xtra Mile could not be unloaded. Though MS was unloaded and TT retention sample was taken, but the staff forgot to produce the same since they were busy with the inspection team. The sample was yet to be labeled and signed by the TT driver. Further, the TT sample was in safe custody. Again on 18.8.2008, the petitioner sent another representation to the opposite party no.1, vide Annexure-5 reiterating the earlier stand. While the matter stood thus, on 1.9.2008, the opposite party no.1 issued show cause notice to the petitioner stating therein that a surprise inspection was carried out by a team of the IOCL at the retail outlet on 12.06.2008. During the inspection, the DSR was not maintained properly. There was a positive variation of 4047 liters in MS stock and the same was beyond permissible variation limits. As 5 per the prescribed guidelines under MDG-2005, product samples were drawn from the retail outlet for testing at laboratory. The samples were tested at Paradeep Laboratory. Both HSD and MS samples were found to meet specification with respect to tests done, vide Lab Report No.LPD/683 & LPD/684 dated 24.6.208. The petitioner was asked to show cause as to why penal action shall not be taken against him in accordance with MDG-2005 and dealership agreement dated 20.2.2007, for stock variation beyond permissible limits as per clauses no.9 read with clause no.6 of MDG-2005 for Unauthorized purchase/sales/exchange of MS/HSD and violation of terms and conditions of the dealership agreement dated 20.2.2007, vide Annexure-6 series.
4. Challenging, inter alia, the show cause notice, the petitioner filed a writ application before this Court, which was registered as W.P.(C) No.13312 of 2008. The said writ application was disposed of on 20.11.2008 by a Division Bench of this Court granting liberty to the petitioner to file show cause within a period of two weeks. It was observed that in case the petitioner submits his show cause and application for allowing to sell the fuel which is not adulterated and competent authority on perusal of the said show cause comes to conclusion that the fuel, which is stored at the outlet, is not adulterated, an appropriate decision may be taken by the officers of the Oil Company for selling of the same in presence of any of the officers of the company and the representative of the petitioner. Thereafter, the 6 petitioner submitted his show cause on 29.12.2008, vide Annexure-9, but the opposite party no.1 did not grant him permission to sell the stock. On 15.1.2009, he received a notice wherein his dealership was terminated, vide Annexure-10. The petitioner unsuccessfully challenged the same before the appellate authority. By order dated 25.6.2009, the appellate authority- opposite party no.4 dismissed the appeal, vide Annexure-13. With this factual scenario, the instant petition has been filed.
5. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties 1 to 4. It is stated that the writ application is not maintainable as the parties are bound by the contract, which is a realm of private law. It is not a statutory contract. The contractual obligations cannot be enforced by the writ court. Dealership Agreement of the petitioner is a commercial contract. Thus, once terminated cannot be restored as per Section 14 of the Specific Relief Act, 1963. It is further stated since the disputed questions of fact are involved, the writ application is not maintainable. An alternative remedy by way of arbitration for settlement of dispute is provided under Clause-61 of the dealership agreement dated 20.2.2007 is available and as such the writ application is not maintainable. The further case of the opposite parties is that the last inspection of the retail outlet of the petitioner was done on 30.3.2008. The DSR was not maintained properly with regard to MS receipts. It was observed that on 12.6.2008 a surprise inspection was carried out on the retail outlet . During 7 inspection, it was found that the stock variation in MS Tank-1 was beyond permissible limit i.e., excess of 4074 liters of MS was found and the entries made in the DSR do not match with the invoices of the products received by the petitioner. Therefore, the petitioner was advised to stop sale of all products with immediate effect. It is further stated that the petitioner sent a letter on 16.6.2008. The explanation was not found satisfactory. The reply dated 12.7.2008 of the petitioner contradicts the earlier reply dated 16.6.2008. In the letter dated 16.6.2008, there was no mention with regard to receipt of 7.5 KL Xtra Mile whereas in the letter dated 12.7.2008, it was stated that he had received 4 KL MS and 7.5 KL Xtra Mile. As per the procedure the staff verified the deep and density of MS, kept the same in the container and unloaded the 4 KL MS product. Since the staffs were busy with the inspection team, they could not produce the papers. The petitioner in his letter dated 18.8.2008 acknowledged that he had made correction in Daily Stock Register and forwarded the same containing the correct entries. It is further stated that a show cause notice was issued to the petitioner on 1.9.2008 requiring him to file show cause for taking penal action as per the dealership agreement dated 20.2.2007 for violation of various clauses of the dealership agreement and the provisions of Marking Discipline Guideline, 2005 (hereinafter referred to as "MDG"). The same was received by the petitioner and he sought time to file reply. At this juncture, he filed W.P.(C) No.13312 of 2008 before this Court challenging the show cause notice. By 8 order dated 20.11.2008, the writ application was disposed of granting liberty to the petitioner to file reply within two weeks. It is further stated that the petitioner in his explanation has not mentioned that he has received 7.5 KL Xtra Mile through the same invoice dated 12.6.2008. The inspecting officials though reached at the petitioner's retail outlet at 14.30 hours on 12.6.2008 have not seen the received of product by any tank truck during the time of inspection. The distance of the retail outlet of the petitioner from the depot is 17 KM. The tank truck loaded for the petitioner's retail outlet left the supply location at 15.30 hours as per depot gate/security register and invoice time put at 15.23 hours. The inspecting official reached the retail outlet at 14.30 hours and the inspection was completed at 17.15 hours. Till completion of the inspection no tank truck reported at retail outlet for decantation. It is further stated that the stock variation found out by the inspecting officials had occurred by the petitioner deliberately and illegally. Since the explanation submitted by the petitioner was found unsatisfactory, the competent authority of the IOCL terminated the dealership agreement in exercise of power conferred under Clause 45(k) & (o) of the dealership agreement and Clause-9 of the MDG-2005. The appellate authority after affording an opportunity of hearing to the petitioner and considering the documents filed by him by a reasoned order dismissed the appeal. The further case of the opposite parties is that the IOCL on 20.1.2009 appointed one of the existing dealer i.e., M/s.Tanveer Filling Station to operate the 9 retail outlet on temporary/ad hoc basis. The IOCL had taken over the possession of the retail outlet on 27.1.2009. On the very same day the retail outlet was handed over to the ad hoc dealer M/s.Tanveer Filling Station. The aforesaid arrangement is still continuing.
6. Heard Mr.S.P.Sarangi, learned counsel for the petitioner and Mr.S.Nanda, learned counsel for the opposite parties 1 to 4.
7. Mr.Sarangi, learned counsel for the petitioner submitted that the writ application is maintainable to enforce contractual obligation of the IOCL, an instrumentality of the State. Further alternative remedy is not a bar to entertain a writ application. He submitted that the retail outlet of the petitioner is situated at 17 Kms. from Jeypore. The petitioner has made every effort to meet the standards prescribed by the IOCL. On several occasions, the outlet was inspected by the official of IOCL, police department as well as Civil Supplies Department. Not a single irregularity was pointed out. On 12.6.2008 the opposite party no.1 visited the retail outlet in absence of the petitioner and inspected the petrol pump. He found certain irregularities, immediately stopped the sale of the product and suspended the supply of the product to the retail outlet. With regard to the allegations that there was variation of stock of MS in MS Tank-1 beyond permissible limit, he submitted that on 12.6.2008 the petitioner had received 4 KL MS and 7.5 KL. Xtra Mile. As per procedure, the staff verified the deep and 10 density of MS, kept the same in the container and unloaded the 4 KL MS product. At that time, the inspection team arrived at the retail outlet. Since the staffs were busy with them, they could not check the T.T. and unload the 7.5 KL Xtra Mile in other two chambers. Even though MS was unloaded and TT retention sample was taken, since the staffs were busy with the inspection team, they forgot to produce the same. He further submitted that the staff of retail outlet was newly appointee for which DSR could not be maintained. Relying on Clause 9 of MDG 2005, he further submitted that when the samples were found to meet the specification and some irregularities were detected, only fine can be imposed. Drawing my attention to the Annexure-6 series, he submitted that the samples were tested at Paradip Laboratory. Both HSD and MS samples were found to meet specification with respect to tests done. Clause 6.1.13 of MDG-2005 provides imposition of penalty if the dealer is in habit of not maintaining any of the records mentioned in Sub Clause (a) to (d) and penal action to be taken as per Appendix-1. The same provides imposition of penalty. In the instant case, the dealership agreement has been terminated, which is not in consonance with MGD-2005.
8. To buttress his submission, Mr.Sarangi, learned counsel for the petitioner has cited decisions in the case of ABL International Ltd. and another Vrs. Export Credit Guarantee Corporation of India Ltd. and others, (2004) 3 SCC 553, Karnataka State Forest Industries Corporation Vrs. Indian 11 Rocks, (2009) 1 SCC 150 and Union of India and others Vrs. Tantia Construction Private Limited, (2011) 5 SCC 697.
9. Per contra, Mr.Nanda, learned counsel for the opposite parties 1 to 4 submitted that the writ application involves disputed questions of fact and as such the same is not maintainable. Drawing my attention to Clause 61 of the Dealership Agreement, vide Annexure-1, he submitted that since the alternative remedy by way of arbitration for settlement of dispute is provided for disputed question of facts cannot be adjudicated in a writ application. He further submitted that the dealership agreement is not a statutory contract and contractual obligation cannot be enforced by a writ court. He further submitted that on earlier occasions, the retail outlet was inspected by the officials of the IOCL. It was found that DSR was not properly maintained. When a surprised inspection was made on 12.6.2008, several irregularities were detected as would be evident from the show cause, vide Annexure-2. Since the explanation submitted by the petitioner was found unsatisfactory, opposite party no.4 terminated the dealership agreement. The appellate authority after affording an opportunity of hearing to the petitioner and considering all the documents, confirmed the order passed by the opposite party no.1. He further submitted that the petitioner gave an undertaking that he will not commit any mistake in future, which pre-supposes that the petitioner has admitted his fault. Since the petitioner 12 has violated the provisions of MDG-2005 and dealership agreement, rightly his dealership agreement was terminated.
10. Mr.Nanda, learned counsel for the opposite parties 1 to 4 has cited decisions in the case of Bareilly Development Authority and another Vrs. Ajay Pal Singh and others, AIR 1989 SC 1076, Pimpri Chinchuard Mining Corporation and others Vrs. Gayatri Construction Company and another, (2008) 8 SCC 172, Whirlpool Corporation Vrs. Registrar of Trade Marks, Mumbai and others, AIR 1999 SC 22, R.S.Saini Vrs. State of Punjab and others, AIR 1999 SC 3579, Lalit Popli Vrs. Canara Bank and others, (2003) 3 SCC 583, Anup Kumar Kundu Vrs. Sudip Charan Chakraborty and others, (2006) 6 SCC 666, M.P. State Agro Industries Development Corporation Ltd. and another Vrs. Jahan Khan, (2007) 10 SCC 88, Puravankara Projects Ltd. Vrs. Hotel Venus International and others, (2007) 10 SCC 33, Oriental Bank of Commerce Vrs. Sundar Lal Jain and another, AIR 2008 SC 1339, Satwati Deswal Vrs. State of Haryana and others (2010) 1 SCC 126, National Textile Corporation Ltd. Vrs. Nareshkumar Badrikumar Jagad and others, AIR 2012 SC 264, Gail (India) Limited Vrs. Gujrat State Petroleum Corporation Limited, (2014)1 SCC 329, B.C.Chaturvedi Vrs. Union of India and others, AIR 1996 SC 484 and Life Insurance Corporation of India and others Vrs. S.Vasanthi, (2014) 9 SCC 315.
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11. Having regard to the pleadings of the parties and contentions advanced at the Bar, the following points, inter alia, arise for consideration of this Court :-
1. Whether a writ application under Article 226 of the Constitution of India is maintainable to enforce the contractual obligation of the State or its instrumentality, by an aggrieved party?
2. Whether alternative remedy is a bar to entertain the writ application?
3. Whether the opposite party no.4 is justified in terminating the dealership agreement?
Point No.1
12. In Ajay Pal Singh (supra), it was held that where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to complete the authorities to remedy a breach of contract pure and simple. The same view was taken in Pimpari Chinchwad Municipal Corporation and others (supra).
13. In ABL International Ltd. and another (supra), a question arose whether a writ application under Article 226 of the Constitution of India is maintainable to enforce contractual obligation of the State or its instrumentality, by an aggrieved party. After survey of the earlier decision, 14 the apex Court taking a cue from the Gunwant Kaur Vrs. Municipal Committee, Bhatinda, (1969) 3 SCC 769 came to hold that it is not an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to the suit. It was further held that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the case of Gunwant Kaur, the apex Court even went to the extent of holding that in a writ application, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. Paragraph 27 of the report is quoted hereunder:-
"27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable."15
14. In Karnatak State Forest Industries Corporation (supra), the apex Court in paragraphs 38 and 39 of the report held as follows:-
"38. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable.
39. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the writ petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless".
15. Thus, the writ application arising out of contractual obligation is maintainable as held by the apex Court in ABL International Ltd. (supra). Point No.2
16. Clause 61 (a) of the agreement, vide Annexure-1, is as follows:-
"61 (a) Any dispute or difference of any nature whatsoever, any claim, cross-claim, counter-claim or set-off or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this agreement shall be referred to the sole arbitration of the Director (Marketing) of the Corporation who may either himself act as the Arbitrator or nominate some other officer of the Corporation to act as the Arbitrator. The Dealer will not be entitled to raise any objection to any such Arbitrator on the ground that the Arbitrator is an officer of the Corporation."
17. In Pimpri Chinchwad Municipal Corporation and others (supra), it was held that merely because a contract is entered into in exercise of an enabling power conferred by a statute that by itself cannot render the 16 contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statue then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporation therein as a result of mutual agreement between the parties. It was further held that a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil 17 court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies.
18. In Tantia Construction Private Limited (supra), a contention was raised on behalf of the appellant-Union of India that since the agreement between the parties provided for arbitration in respect of all disputes and differences of any kind arising out of or in connection with the contract, the writ court was not competent to decide the issue involved in the dispute. The apex Court in paragraph-33 of the report came to hold that even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.
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19. After survey of the earlier decisions, the Supreme Court in the case of Whirlpool Corporation (supra), in paragraphs 15 and 20 of the report held as follows:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
xxx xxx xxx
20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
20. Thus alternative remedy is not a bar to entertain a writ application under Article 226 of the Constitution in at least three contingencies mentioned in Whirlpool Corporation (supra), namely, where the writ application has been filed for the enforcement of any of the fundamental rights or where there has been violation of principles of natural justice or 19 where the order of the proceedings are wholly without jurisdiction of the vires of the Act is challenge.
21. A bare reading of the decisions cited by the learned counsel for the opposite parties in the case of Sundar Lal Jain, Ajay Pal Singh, Jahan Khan, Satwati Deswal, Puravankara Projects Ltd. Lalit Popli, B.C.Chaturvedi, R.S.Saini, S.Vasanthi, Anup Kumar Kundu and Nareshkumar Badrikumar Jagad (supra) however, show that there is significant difference in the factual matrix in which the said cases arise for consideration. Reliance placed upon the said decisions is of no assistance to the opposite parties.
22. There is no whisper in the writ application that the impugned order is an infraction of principles of natural justice or the order of termination passed by the authority has no jurisdiction to pass the same. Point No.3
23. During inspection on 12.6.2008, the IOCL officials detected the irregularities mentioned in the inspection report, vide Annexure-2 (quoted in paragraph 2 above). The petitioner submitted his reply taking a stand that he has received 4 KL MS, which has not been taken into account while stock was verified. Though the stock was unloaded in the outlet, driver of the tanker carrying challan had gone to nearby a hotel for taking lunch. Staff of retail outlet could not show the challan regarding receipt of 4 KL MS. The petitioner admitted that it was lapse on the part of the employee and 20 submitted reply on 16.6.2008. So far as discrepancy with regard to maintenance of DSR is concerned, it is stated that the staff present on the date of inspection was a newly appointee and not well versed with the maintenance of entries in the DSR. Thus discrepancy occurred. A copy of the extract with correct entries of the DSR was sent on 16.6.2008, vide Annexure-3. The petitioner had undertaken to abide the rules and regulations of the IOCL. Again another reply was submitted on 12.7.2008 explaining therein that on 12.6.2008 the petitioner received 4 KL MS and 7.5 KL Xtra Mile. As per the procedure, the staffs verified the deep and density of the MS, kept the same in the container and unloaded the 4 KL MS product. At the same time inspection team arrived on the retail outlet. Since the staffs were busy with them, they could not check the T.T. and unload the 7.5 KL Xtra Mile. It was a lunched time. The driver of the tanker had gone to nearby a hotel for taking lunch for which Xtra Mile could not be unloaded. Even though MS was unloaded and TT retention sample was taken, yet since the staff was busy with the inspection team, they forgot to produce the same. The same plea was taken in the representation dated 18.8.2008, vide Annexure-5.
24. Much reliance has been placed upon the reports, vide Annexure- 6 series. The same reveal that both the HSD and MS samples were found to meet the specification with respect to tests done, but the fact remains that at the time of inspection of retail outlet, it was found that there was variation of 21 stock of MS and the entries made in the DSR do not match with the invoice of the products. During inspection of RO, stock variation of 4074 litres was detected, which was much beyond the permissible limits of 106 litres. The petitioner also sought to explain the variation, which was not found to be satisfactory by the IOCL. There are disputed questions of fact which cannot be effectively adjudicated in a writ application.
25. In view of the same, it is open to the petitioner to invoke Clause 61 of the Dealership Agreement for referring the matter to the Arbitration. The writ application is dismissed. No Costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 31st July, 2015/CRB.